FRCP Preparedness - Focus on "Good Faith"

The December 2006 amendments to the Federal Rules of Civil Procedure (FRCP) have caused another flood of fear and uncertainty flowing through the marketplace. But unlike the fear and uncertainty that accompanied Sarbanes-Oxley, which primarily impacted publicly-owned companies, FRCP affects any organization who might find itself in a civil law-suit. Therefore, this is a serious concern for every organization. But relax, it's not all that onerous.

The end product of the FRCP amendments, which deal specifically with Electronically Stored Information (ESI), is codification of the treatment of electronic evidence and additional clarity in a legal area previously shrowded in some mystery. For years, a party involved in civil litigation, who was unable to produce e-mail evidence in the discovery process, was able to hide behind a myriad of excuses and claims of lack of clear direction. This is now no longer possible. Now, much of the guess work (not all of it, mind you) has been removed.

It is the notion of Good Faith which is the essential element. Amendment Number 37 states that "...a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system."

What this means is that if you want to make excuses for not being able to produce e-mail evidence during discover because of cost or complexity (referred to as the "safe harbor"), you need to demonstrate "good faith operations". Falling back on old reliable excuses like " we didn't know what IT was doing" or "we automatically delete our e-mails after a month" will no longer cut it.

Path to FRCP Preparedness:

First and foremost, you need to understand that the term "Good Faith", as it is used in these new amendments, effectively declares you know our rules; operate accordingly. As a result, if you can demonstrate Good Faith in your treatment of electronic record keeping, you should be fine.

So how do you inject Good Faith into your organization's treatment of future e-mail evidence? Here are four key principles to follow:

1. Start Early - The onset of civil proceedings or a Litigation Hold is the worst possible time to start dealing wth this issue - do it now

2. Policy - Bring together legal, executives and IT managers to create a policy for the capture of, retention of, and access to e-mail records in your organization

3. Procedures - Define a set of procedures that align with the organization's Policy and, if needed, implement a system that automates these procedures

4. Communication - Provide a clear explanation to all employees of the organization's Policys and Procedures, and the responsibilities on each employee

For a copy of the white paper called "New Imperative for E-mail Evidence", send a request to communications@NorthSeasAMT.com